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US Immigration Questions

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form. This answer is for information purposes only and does not create an attorney-client relationship.

H-1B specialty occupation for MS in UX Design (STEM)

1 month ago By Chief Editor
Question details

I hold an MBA (non-STEM) and an MS in UX Design (STEM) both from US universities. My role blends managerial duties with design expertise, and my career goals include executive positions in the design domain. How does this dual specialization impact my H1B case, particularly regarding the "specialty occupation" criteria? Are there any nuances I should be aware of?
 

ANSWER
FAQ Transcript

Yes, it is possible to get an H-1B for UX design, but it depends on how your job is classified. UX design can fall under multiple fields, such as computer science, graphic design, ergonomic engineering, human factors design, or industrial psychology.

To qualify for an H-1B, your role must clearly require a specialized degree in a related field. Work with your lawyer to determine the best classification based on your job duties and educational background. Careful planning is essential to ensure a strong case.
 

Nonimmigrant Visas

Can I delay using an H-1B visa to utilize the STEM extension period?

1 month ago By Chief Editor
Question details

I am in my first year of OPT and eligible for a STEM extension. If selected in the H1B lottery on the first attempt, can I delay activating my H1B to fully utilize my STEM OPT? Would this be advisable, and what are the potential benefits or risks?
 

ANSWER
FAQ Transcript

If you have time left on your STEM OPT but have won the H-1B lottery, you can technically opt for H-1B consular processing and continue using your STEM OPT. However, since 2023, this approach has become riskier.
The safer option is to proceed with an H-1B change of status. If you delay the H-1B activation and later face job loss, transferring the H-1B could be more complicated. While consular processing is still possible, it carries uncertainties. If it were my case, I would choose the change of status for a more secure transition.
 

Nonimmigrant Visas

Green Card

Laid off on EAD from EB1A, can I start an UNRELATED teaching business? Can I travel on Advance Parole?

1 month ago By Chief Editor
Question details

I have an EAD from an approved EB1A petition (priority date: Apr 2022). I recently got laid off and am thinking of starting a business ( related to K-12 education.) MY EAD is based on an advanced degree in Operations research with publications and related work experience in data science. Is there a risk to justify 'teaching' or running a tutoring business based on this EAD? If so, can you keep looking for related jobs and teach on the side without incorporating this as a business in the interim? On an unrelated note, in your opinion, what is the risk of traveling out of the country in this situation? (I have an advance parole in hand as well.)
 

ANSWER
FAQ Transcript

If you have an EB-1A-based EAD and a pending I-485, starting an unrelated business (such as teaching) is risky. Your EB-1A petition asserts that you intend to work in your field of extraordinary ability. Shifting to an unrelated field could raise questions about your original intent and impact your green card application.

Additionally, traveling on Advance Parole in this situation may pose some risks. It’s advisable to either have a job offer or a clear plan to work in your field (such as consulting with clients) before traveling. Proceed with caution.
 

Green Card

Can an H-1B holder start a company with a full-time job?

1 month ago By Chief Editor
Question details

As per the new 2024 H1B Rules, can an H1B holder start a company with 100% ownership (possibly working on out-of-office hours/weekends) while holding a full-time job at another company?
 

ANSWER
FAQ Transcript

Yes, an H-1B holder can start a company while maintaining a full-time job, but there are key conditions:

  • Concurrent H-1B: You must file for a concurrent H-1B for your own company.
  • Ownership: You can own 100% of the company; USCIS allows majority ownership.
  • Job Role: At least 51% of your work must be in your H-1B specialty (e.g., software development), not just as a CEO.
  • Salary & Compliance: Your company must pay you a prevailing wage and follow all standard H-1B rules.

While legally possible, the process is complex and must be carefully structured to meet all H-1B regulations.
 

Nonimmigrant Visas

H-1B cap exempt visa pros and cons

1 month ago By Chief Editor
Question details

I am on OPT, which started on 19th February 2024. I joined my first job on OPT on 8th July 2024 and lost one attempt at the H1B lottery. I work for a research foundation, and they can sponsor me for an H1B-exempt visa. I have a degree in computer science, and I ultimately want to work in corporate America, which means I need to get an H1B cap-subject visa.

My question is whether I should get this H1B exempt visa through my current organization or if I should try to switch to a different company and use my remaining two attempts at the lottery. I ask this because once I get the H1B exempt visa and change my status from F1 to H1B, I won’t be able to switch to a for-profit organization and would be stuck in H1B exempt visa category. H1B-exempt visa jobs are less and pay less. And though the option of an H1B concurrent visa is there but I feel in reality, it will be challenging to get a company to allow me to work for another company due to NDA requirements and also allow part-time work. (But I would appreciate your advice on this since you must have had client experience.)

Can you advise me on how to get the H1B exempt visa now? Does it have any advantage, given I want to transition to a corporate company? What options will I have if I switch to a for-profit organization? Also, I am currently funded through a grant, and it has runway till July 2026.

I have seen people saying not to get an H1B exempt visa as you will be stuck in that category, but I also feel that any H1B visa will be better than F1. 
 

ANSWER
FAQ Transcript

If you have the opportunity to get an H-1B cap-exempt visa through a research foundation, you should take it. Having cap-exempt H-1B status does not prevent you from continuing to apply for the regular H-1B lottery.

Additionally, you can hold both a cap-exempt and a cap-subject H-1B concurrently as long as you maintain your cap-exempt job. If you win the H-1B lottery through a for-profit employer, you can easily switch to a regular H-1B.

Taking the cap-exempt route ensures immediate work authorization and does not limit future opportunities. The idea that you’ll be "stuck" in cap-exempt status is incorrect.
 

Nonimmigrant Visas

Gap in approval dates between change of status from one status to another

1 month ago By Chief Editor
Question details

I applied for a change of status from an H1B to an H4 visa via I-539 in May 2024 as I got laid off, with my last working date being 3/19/2024.
The document was received by USCIS on 5/10/2024 and confirmed by I-797C, Notice of Action dt 5/20/2024.

On 12/26/2024, my case was approved. I received I-797A Notice of Action with Approval on 1/7/2025. The approval date shows the validity of H4 from 12/23/2024 to 03/13/2027.

On my I-539 I had asked for the change of status to be effective from 05/15/2024 as my 60-day period would run out on 5/19/2024.

However, the H4 approval shows the start date as 12/23/2024. So, my question is, what status was I in during the period 5/19/2024 and 12/23/2024, and will I face any problems if I go for visa stamping? Do I need to write to USCIS and ask for a date to be changed to 5/15/2024 to avoid issues in the future?
 

ANSWER
FAQ Transcript

If you applied for a change of status (COS) while still in valid status—such as H-1B plus the 60-day grace period—you are not considered out of status while your application is pending. In this case, since you applied for H-4 within the grace period, the period between May (filing date) and December (approval date) is classified as an authorized period of stay, meaning it does not count as unlawful presence.

Even though the approval date is later, you are not subject to the three-year bar because you remained legally in the U.S. while the petition was pending. There are no negative implications for your status.
 

Nonimmigrant Visas

Relocating to India with GC, how to apply for US citizenship?

1 month ago By Chief Editor
Question details

We primarily have questions on relocation to India and possibilities.
My wife and I want to retain our Green Cards and eventually get US citizenship. We are just 3 years away from getting our US citizenship.
However, we want to relocate to India for our aging parents. We want to be able to relocate to India now for a few years (5 years), but we also don’t want to miss out on the citizenship opportunity when we are this close to getting our US citizenship. Is this even possible without the hassle of staying 6 months in the US and 6 months in India, and would there be any tax implications if one of us continues to work for the same employer in the US remotely from India?
We are aware that we can take 2 years' permission by filing Form I-131 and staying outside the US for 2 years. However, we need more than 2 years to stay outside the US. Also, the citizenship clock resets if we take this option. Is there a way to avoid this?

 

ANSWER
FAQ Transcript

If you plan to relocate to India with a green card before obtaining U.S. citizenship, it can significantly complicate the naturalization process. To apply for U.S. citizenship, you must meet physical presence requirements: at least 2.5 years in the U.S. over the last five years and no single absence of a year or more. If you stay outside the U.S. for over six months but less than a year, you may need to provide an explanation.
A re-entry permit (Form I-131) allows you to stay outside the U.S. for up to two years without losing your green card, but it does not help with citizenship requirements. Form N-470 can protect your eligibility in limited cases, such as working for a U.S. company’s foreign branch, but it does not guarantee naturalization.
If you stay abroad for more than a year, you will likely need to restart your five-year residency requirement (or four years and one day if a re-entry permit was used). While re-entry permits can be renewed in certain cases, they do not protect your citizenship timeline.
Best advice: Obtain U.S. citizenship first and then relocate, as naturalized citizens can live abroad indefinitely without affecting their status. Please consult your lawyer regarding this.

 

Green Card

Citizenship and Naturalization

H-4 working in the US on her Indian business

2 months ago By Chief Editor
Question details

My status: H1B + i140 approved (6 months completed)
Wife's status: H4 (applied for H4-EAD in July 2024)

My wife has a small business In India that she operates from here. She is currently in India (has been in India since Nov'24) and is traveling back to US (Jan'25) via Abu Dhabi.

1. Is she allowed to work for her India company in US? Everything she earns is in INR
2. If asked at port of entry, do you work in India, should she say yes or no?

ANSWER
FAQ Transcript

An H-4 visa holder operating a small business in India from the U.S. could potentially violate their visa status, even if earnings are in Indian rupees. At the port of entry, honesty is essential—lying could lead to a permanent U.S. entry ban, which is hard to waive.

While it's unclear if this constitutes a status violation, it’s a borderline case. To avoid risks, it’s advisable not to engage in such activities while on H-4 status.

Nonimmigrant Visas

Green Card

Can L-1A holders or applicants also apply for the H-1B lottery?

2 months ago By Chief Editor
Question details

I worked in the US for the last 3 years on STEM OPT but did not get selected in the H1B lotteries. I returned to India in June 2024 and have been working with the same company since then. My employer plans to file my L1A visa petition after July 2025.

Can I also participate in the upcoming H1B lottery?
Would applying for the H1B affect my L1A petition?
Additionally, given that I have worked outside the U.S. for a year within the last five years with the same company, is it possible to transition from H1B to L1A status?

ANSWER
FAQ Transcript

Yes, L-1A holders or applicants can also apply for the H-1B lottery. Filing for H-1B will not impact your L-1A application unless there’s a discrepancy in the job descriptions for the two applications.
Additionally, if you’ve worked outside the U.S. for at least one year in a managerial role, you can transition from H-1B to L-1A later.
 

Nonimmigrant Visas

I-130 for parent: Visitor visa travel during pending I-130, any changes under Trump

2 months ago By Chief Editor
Question details

I am a US citizen. I am planning to file an I-130 in January 2025 for my mom, who is currently residing in India. She plans to visit us in July 2025 (on her visitor visa, valid until Feb 2026). Can she travel to the US while the I-130 has been filed and is pending? What additional preparation/papers would she need if this is an issue? I have heard cases of denied entries in similar cases. I thought of postponing the I-130 until after her US visit next year, but I fear the process may slow down under the new administration. Please advise what would be the right thing to do since we would like for her to visit us in 2025.
 

ANSWER
FAQ Transcript

If you are filing an I-130 for your parent, they can generally travel to the U.S. on a visitor visa while the petition is pending. Theoretically, they could face issues at entry due to the pending green card application, but in practice, parents of U.S. citizens are rarely stopped for this reason.
To reduce the risk of being denied entry, consider having your parent use an immigration pre-clearance airport, like Abu Dhabi or Dublin, so they can return home easily if denied. While past practices suggest minimal issues, policies could change, especially under unpredictable administrations.
 

Nonimmigrant Visas

Green Card

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